Eric Posner Reviews Chemerinsky's "The Conservative Assault on the Constitution"

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Eric A. Posner

The New Republic

January 2, 2011

The conservative assault on the Constitution began with the election of Richard Nixon, who promised to appoint Supreme Court justices to reverse Warren Court precedents of the previous fifteen years. Under the leadership of Chief Justice Warren, the Court had desegregated schools, strengthened the rights of criminal defendants, advanced the right of privacy, and limited the role of religion in public life. These decisions pleased liberals and other constituents of the Democratic Party, but displeased a great swathe of people—white Southerners, ordinary people fearful of crime, religious folk—whose votes Nixon sought. Nixon’s justices began rolling back the Warren Court precedents. This took time: the 1970s saw more Supreme Court decisions that conservatives deplored. But justices appointed by subsequent Republican presidents created a solid conservative majority.

Erwin Chemerinsky usefully tells the story. The Supreme Court had ordered the desegregation of public schools in Brown v. Board of Education, decided in 1954, but the process had stalled by the 1970s. Whites fled inner cities and set up all-white schools in suburbs; deprived of their tax base, municipalities shrank inner-city school funding. Nixon’s Supreme Court overturned legal efforts to broaden the reach of desegregation orders, so that they crossed district lines, and to equalize financing of schools. In recent years, the conservative majority has also blocked voluntary efforts by cities and states to desegregate the schools.